Reference for a preliminary ruling from High Court (Ireland) made on 3 June 2022 — AHY v The Minister for Justice

(Case C-359/22)

(2022/C 303/23)

Language of the case: English

Referring court

High Court (Ireland)

Parties to the main proceedings

Applicant: AHY

Respondent: The Minister for Justice

Questions referred

Does the right to an effective remedy, in the form of an appeal or review, in fact and in law, against a ‘transfer decision’ pursuant to the provisions of Articles 27(1) of Regulation (EU) 604/2013 (1) of the European Parliament and of the Council of 26th June 2013 (the ‘Dublin III Regulation’) encompass the right to such an effective remedy against a decision made by the Member State under Article 17(1) of the Dublin III Regulation as to the exercise of its discretion under Article 17(1) as to whether it should examine the international protection application lodged with it by a third-country national or a stateless person even if such examination is not its responsibility under the criteria laid down in the Dublin III Regulation?

If the answer to question 1 is ‘yes’:

(a)	Does it follow that a requesting Member State is precluded from implementing a transfer decision pending the determination of an applicant's request for the exercise of discretion under Article 17(1) of the Dublin III Regulation?

(b)

Do the provisions of Article 27(3), which require Member States to provide in their national law for one of three forms of suspensive effect for the purposes of appeals against or reviews of transfer decisions, include a challenge to a decision under Article 17(1) refusing to exercise the option of assuming responsibility for an international protection application (‘an article 17 refusal decision’)?

(c)

where no specific national law provides for one of the three forms of suspensive effect in Article 27(3) in the event of a challenge to an article 17 refusal decision, are the Courts on such a challenge obliged to grant suspensive effect in one of those three forms in its national law and, if so, which one?

(d)	Must each and all of the suspensive remedies under Article 27(3) be interpreted to operate as a stay on the time limit for the implementation of a transfer decision under Article 29(1) of the Dublin III Regulation?

If the answer to question 1 is ‘no’:

(a)

does the right to an effective remedy under Article 47 of the Charter of Fundamental Rights of the European Union preclude a requesting Member State from implementing a transfer decision pending the determination of an applicant's request for the exercise of discretion under Article 17(1) of the Dublin III Regulation?

(b)

does the right to an effective remedy under Article 47 of the Charter of Fundamental Rights of the European Union preclude a requesting Member State from implementing a transfer decision pending the determination of a challenge by way of judicial review brought under the provisions of national law to an article 17 refusal decision?

(c)

Alternatively, does a challenge by way of judicial review brought under the provisions of national law to an article 17 refusal decision operate as a stay on the time limit for the implementation of a transfer decision under Article 29(1) of the Dublin III Regulation or otherwise have suspensive effect on the transfer decision

(1) Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ 2013, L 180, p. 31).